This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2013AP2352-FT

Cir. Ct. No.2013CV1592

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT II

City of New Berlin,

Plaintiff-Respondent,

v.

John Francis Downey,

Defendant-Appellant.

APPEAL
from an order of the circuit court for Waukesha County:kathryn W.
foster, Judge.Affirmed.

¶1BROWN, C.J.[1]John Downey appeals from his citations for
operating a vehicle while intoxicated and with a prohibited alcohol
concentration, arguing that the traffic stop leading to those citations violated
statutory and constitutional law because it was conducted by a West Allis
police officer outside the boundaries of West Allis.The municipal court determined that the
officer, following up on a citizen complaint about a serious emergency—a
vehicle proceeding west in the eastbound lane of traffic—had the right to
conduct this traffic stop just outside of the boundaries of West Allis.The circuit court affirmed.We do as well.

Facts

¶2At about 3:15 a.m. on August 27, 2011, a West Allis police
officer on patrol driving a marked squad car westbound on Oklahoma Avenue,
approximately where it crosses 116th Street, was flagged down by an eastbound
motorist.The motorist “was honking his
horn and flashing his lights,” and the officer stopped his vehicle right in the
road, as there was no one behind him.The motorist rolled down his window and told the officer, “You’d better
go up. There’s a vehicle that’s travelling westbound in the eastbound lanes of
travel.”

¶3Within seconds the officer, concerned about preventing an
accident, radioed dispatch to tell them he was proceeding westbound looking for
the reported vehicle.Because he was
close to the New Berlin boundary, the officer asked the dispatchers to alert
New Berlin about the situation too.The
officer proceeded westbound on Oklahoma Avenue, which turns into National
Avenue at 124th Street, looking for any sign that the vehicle had caused an accident.He drove for about one minute and crossed
into New Berlin without seeing the vehicle.

¶4The officer had driven
six blocks into New Berlin and was about to turn back to West Allis when he saw
the taillights of a vehicle “heading westbound in the wrong lane” up
ahead.The officer “felt that this was
an emergency situation” and that he “could not let this vehicle proceed
westbound in the eastbound lanes of travel,” so he caught up to the
vehicle.The vehicle crossed back over
into its own lane, and the officer signaled it to pull over, near 150th Street
and National Avenue.He spoke to the
driver, Downey, asked for his license, and told him that he thought he was
going the wrong way. He observed that
Downey had glassy eyes, slurred speech, and smelled like alcohol.Downey admitted he had been drinking
alcohol.

¶5New Berlin officers reached the scene of the traffic stop
within two minutes.The entire
incident—from the moment the motorist flagged down the officer to the time when
the New Berlin officers arrived at the scene—took five minutes at the
most.Once the New Berlin officers
arrived, they took over the investigation, and it was they who issued Downey’s
citations.

¶6Downey moved to dismiss his citations and suppress the
evidence from his traffic stop, arguing that the stop was “jurisdictionally
defective.”The municipal court rejected
Downey’s arguments, finding that the officer followed the proper protocols
under West Allis police department policy for responding to emergency
situations in another jurisdiction and was in fresh pursuit of Downey from West
Allis.Downey attempted to have that
decision reviewed de novo by the circuit court and then by this court, but was
informed that the decision was not a final judgment ready for appeal.Downey’s untimely appeal was voluntarily
withdrawn and the case remanded for trial.The municipal court found Downey guilty on both citations.The circuit court affirmed that outcome in
all respects.Downey now appeals to this
court.

Analysis

¶7In Wisconsin, an on-duty[2]
law enforcement officer outside his or her jurisdiction may “arrest a person or
provide aid or assistance anywhere in the state” if he or she is (1) on
duty and on official business, (2) taking action that would be authorized
under the circumstances in the officer’s own jurisdiction, and (3) acting
to respond to an emergency situation that poses a significant threat of bodily
harm or to life.[3]Wis.
Stat. § 175.40(6)(a).This
extra-territorial authority may only be exercised consistent with the adopted
policy of the officer’s jurisdiction, which must include “at least a policy on
notification to and cooperation with” other jurisdictions.Section 175.40(6)(b) and (d).In addition, if in “fresh pursuit” of a
violation of law, an officer may “follow anywhere in the state.”Sec. 175.40(2).

¶8The officer’s actions here were justified under both of these
rules.First, a citizen’s report that he
had just observed a vehicle driving westbound in the eastbound side of Oklahoma
Avenue in the darkness of early morning was a serious emergency situation.So, the officer had authority under Wis. Stat. § 175.40(6)(a) because
he was (1) on duty, (2) taking action he would have been authorized
to take in West Allis—i.e., conduct a traffic stop of a vehicle driving into
oncoming traffic, and (3) responding to an emergency that threatened life
or bodily harm.

¶9Downey responds that the officer cannot rely on Wis. Stat. § 175.40(6)(a) because
he failed to follow the policies of his jurisdiction (as required by § 175.40(6)(b)
and (d)), in particular, that portion of the West Allis Police Department
Directive 2.002 which provides that an officer conducting a general
investigation “should have prior approval from their shift commander and/or his
designee.”But as the circuit court
noted, that rule is worded as an advisory directive—the officer “should” have
the prior approval, not “shall” have it.This is in contrast with the next portion of the rule, which requires
that the officer “shall” notify dispatch of his or her location.And, in any event, the officer did all he
could under the circumstances to obtain prior approval—he called dispatch.The exigencies of the situation demanded he
act immediately to prevent an accident, not wait to confirm with dispatch that
approval was being granted.Under the
circumstances the municipal court did not err in finding that the officer
followed the proper protocol and had implied approval to respond to this
emergency situation at the border between West Allis and New Berlin.

¶10The court also correctly determined that the officer’s actions
were justified under the “fresh pursuit” rule of Wis. Stat. § 175.40(2).That rule provides that an officer “in fresh pursuit” may “follow
anywhere in the state and arrest any person for the violation of any law or
ordinance the officer is authorized to enforce.”Sec. 175.40(2).For instance, a Brookfield police officer who
saw a vehicle with expired license plates and then, following the vehicle,
noticed it was exceeding the speed limit, weaving, and crossing the center line
was justified in stopping the vehicle shortly thereafter in Elm Grove, because
she was in “fresh pursuit.”City
of Brookfield v. Collar, 148 Wis. 2d 839, 840-41, 843, 436 N.W.2d 911
(Ct. App. 1989).Downey attempts to distinguish
Collar
on grounds that the officer in Downey’s case did not see the vehicle in
question until he was outside of West Allis.This distinction is immaterial.What matters under the “fresh pursuit” doctrine is whether the officer
acted without unnecessary delay and remained in continuous, uninterrupted
pursuit.Id. at 842.There is no requirement of “continuous
surveillance of the suspect.”Id. at
842-43.Here, a motorist in the
officer’s jurisdiction was so alarmed that he honked and flashed his lights at the
officer and asked him to pursue the car traveling in the wrong lane in the
jurisdiction.The officer did so.The whole incident took a couple of
minutes.This was fresh pursuit of
conduct that happened in the officer’s jurisdiction.

¶11Finally, Downey argues that Wis.
Stat. § 175.40(6)(b) and (d) were also violated because the officer
failed to follow another provision of West Allis Police Department Directive
2.002, which states that nonfelony arrests may not be undertaken unless
“[p]rior to any action, officers/investigators” were assisted by the local
jurisdictional agency or another relevant agency.But the directive says that implicit in an
“arrest” is “not only custody, but also the aim of bringing the person arrested
into the judicial process to answer for an offense.”Here, the officer was just conducting an
ordinary traffic stop, which often leads to no “arrest[] into the judicial
process.”An officer may stop a vehicle
if he reasonably believes that the driver is violating the traffic laws, and
may ask questions related to the nature of the stop.State v. Betow, 226 Wis. 2d 90, 93,
593 N.W.2d 499 (Ct. App. 1999).It was
the New Berlin officers who made the arrest itself, in their own jurisdiction,
based upon Downey’s violations of the law in New Berlin.

¶12There is no error in the municipal court’s decision.

By the Court.—Order affirmed.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)4.

[1] This
appeal is decided by one judge pursuant to Wis.
Stat. § 752.31(2)(b) (2011-12).All references to the Wisconsin
Statutes are to the 2011-12 version unless otherwise noted.

[2] The
rules for off-duty officers are different and irrelevant here.See Wis. Stat. §175.40(6m).

[3] Responding
to a felony also justifies extra-territorial action by an officer, Wis. Stat. § 175.40(6)(a)3.b, but is
irrelevant here.